Central Administrative Tribunal - Delhi
S.R. Samuel vs Union Of India on 21 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2829/2010 New Delhi, this the 21st day of March, 2011 HONBLE MR. JUSTICE V.K.BALI, CHAIRMAN HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A) S.R. Samuel, H.No.A-201, Plot No. 29, True Friends Apartments, A Block, Sector-6, Dwarka, New Delhi. Applicant. (By Advocate: Shri V.S.R. Krishna) VERSUS Union of India Through: 1. The Secretary, Ministry of Home, North Block, New Delhi. 2. The Special Secretary to the Government, Government of Jammu and Kashmir, Home Department, Civil Secretariat, Sringar. Respondents. (By Advocate Shri B.L. Wanchoo) ORDER
Mr. L.K.Joshi, Vice Chairman (A) The Applicant is a 1999 batch officer of the Indian Police Service (IPS) belonging to Jammu and Kashmir (J&K) cadre and is seriously aggrieved by the orders dated 05.08.2010 of the second Respondent, Special Secretary to the Government of J&K, placing the services of the Applicant at the disposal of National Commission for Scheduled Tribes (NCST) on Central deputation as Superintendent of Police and also the order dated 25.08.2010, by which the Director General of Police, Government of J&K has been directed by the second Respondent to relieve him for the new assignment. The prayer of the Applicant is to quash the aforesaid orders and to direct the Respondents to retain him with the Government of J&K.
2. The case of the Applicant, as articulated by the learned counsel, is that he could not have been deputed to NCST as per the provisions of Rule 6 of the Indian Police Service (Cadre) Rules, 1954 without his consent. Rule 6 ibid has been extracted below:
Deputation of cadre officers. 6(I) A cadre officer may, with the concurrence of the State Government or the State Governments concerned and the Central Government, be deputed for service under the Central Government or another State government or under a company association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Central Government or by another State Government:
Provided that in case of any disagreement the matter shall be decided by the Central Government and the State Government or State governments concerned shall give effect to the decision of the Central Government.
6(2) A cadre officer may also be deputed for service under:
6(2)(i) a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by a State Government, a Municipal Corporation or a Local Body, by the State government on whose cadre he is borne, and 6(2)(ii) an international organisation, an autonomous body not controlled by the Government, or a private body, by the Central Government in consultation with the State Government on whose cadre he is borne:
Provided that no cadre officer shall be deputed to any organisation or body of the type referred to in item (ii), except with his consent: (Emphasis added) Advertence has also been made to the guidelines dated 27.12.2006 of the Government of India in the Department of Personnel and Training (DOP&T), which are regarding deputation of members of the All India Services under Rule 6 (2) (ii) of the respective cadre rules. The guidelines, inter alia, state that:
"[page 68]."
1. Deputation under rule 6(2)(ii) may be allowed to the following categories of organisations:
Constitutional bodies Statutory bodies created by law of Parliament or State legislatures Multilateral bodies, bilateral bodies, international financial institutions, international organisations and NGOs and multilateral organisations, defined as follows:-
International organisations notified by the MEA under the UN (Privileges and Immunities) Act, 1947:
(a) United Nations Organisations or Organisations under the UN.
(b) Bilateral bodies set up under the Vienna Convention i.e. Embassies and Bodies set up under them eg. USAID, DFID, NORAD etc.
(c) International financial institutions eg. The World Bank, IMF, Regional Banks like ADB, Afro-Asian Rural Reconstruction Organisation etc.
(d) Multilateral Organisations eg. International Court of Justice, IAEA etc. and bodies of Regional Cooperation eg. SARC, EU etc.
(e) International NGOs eg. International Committee of the Red Cross.
(f) Other foreign NGOs from whom India receives Technical/financial assistance eg. Action Aid clearance from Ministry of Home Affairs and MEA would be sought for such deputations.
(g) International organisations, which are private bodies. Further, the autonomous bodies not controlled by Government have been defined thus:
e. Autonomous bodies not controlled by Government which are defined as follows:
The following criteria may be taken into account any of the three may be the basis:
(i) Structure of the Organisation Organisations covered by the Rule 6(2)(ii) may include Constitutional bodies, Statutory organisations, Commissions, Regulatory Authorities and organisations like Universities with functional autonomy created under Constitutional and statutory provisions. These organisations may opt for the Central Staffing Scheme or not opt for the same.
(ii) Financial Autonomy Organisations with less than 50% share of government funding or organisations where Government is not a majority shareholder.
(iii) Power to give directions Organisations over which the Government has no power to give directions. The nature of byelaws and the power to guide would be important, for example, in the case of the Food Corporation of India (FCI). Organisations where Government officials hold ex officio positions cannot be considered as autonomous. The learned counsel would emphatically contend that the averment of the Respondents in the counter affidavit that he has been deputed under Rule 6 (1) ibid is totally wrong, as would be evident from the reading of the Rule. The Notification S.O. number 14175 (E) has been produced by the learned counsel for the Applicant, whereby the President has made the rules under powers conferred by sub-clause (f) of Clause 5 of Article 338 A of the Constitution of India. He would contend that it would be clear from these rules that the NCST is not controlled by the Government. Article 338 A, inter alia, reads thus:
"338 A. National Commission for Scheduled Tribe.-(1) there shall be a Commission for the Scheduled Tribes to be known as the National Commission for the Scheduled Tribes. It was urged that the NCST is a Constitutional body to which the Applicant could not be deputed without his consent, as per the Rule 6 (2)(ii) ibid and the guidelines of DOP&T. The learned counsel for the Respondents has not been able to controvert the foregoing arguments on behalf of the Applicant.
3. It is clear from the above discussion that the deputation of the Applicant is under Rule 6 (2) (ii) ibid and his consent has not been taken for this deputation, which is de hors the Rule. The Applicant could not have been sent on deputation to NCST without his consent. In the result the OA succeeds. The impugned orders at Annex A-1 are quashed and set aside. There will be no orders as to costs.
( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman sk